Reality Check — Health Care Negotiations

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To require Congress to negotiate in public is to ban certain communications among Members of Congress.

There’s a growing sense that real legislative negotiations should be public.

C-SPAN made such a call last week, and the Society of Professional Journalists has now called for public access to health care negotiations.

These two efforts follow Representative Vern Buchanan’s bill introduced in October, H.Res. 847, a sense of the House resolution calling for open health care deliberations.

While each of these requests has slightly different wording, their goal is similar — taking aim at the real sausage-making — the trading, haggling, prodding, and arguing, the consensus-making, elbow-throwing, backstabbing stuff of legislative power. Were that aspect of Congress to be public, the institution would be change significantly, to say the least. How, though, can it be required to be public?

As we have examined before, requiring formal conference committee proceedings wouldn’t get us there. We’ve also noted that moving away from a publicly deliberative processes (like Conference Committees) is what’s to be expected of a Congress where parties and leadership enjoy concentrated power, and that this transformation will have complex effects on transparency.

How, then, can we require Congress to truly negotiate in public?

Each of these calls has a similar request — Rep. Buchanan’s that “any conference committee or other meetings [regarding healthcare] …be held in full public view and not behind closed doors,” SPJ‘s that Congress “reconcile differences between health care bills” by “televis[ing] the negotiations live,” and C-SPAN’s that Congress “open all important negotiations, including any conference committee meetings, to electronic media coverage.”

These each sound good in theory. Imagine, though, that you were responsible for implementing these suggestions. How could they be fulfilled?

If you were the Speaker, or the Chair of a committee, how could you implement this requirement? You could easily set up an event, invite the media, and discuss healthcare. You could even set up an agenda pertaining to reconciling the health care bill. This doesn’t guarantee though, that the real negotiations get broadcast — it doesn’t get us to “all important negotiations,” to use C-SPAN’s formulation. It doesn’t keep Members from reading prepared statements while their staffers negotiate in private, and it doesn’t compel Members not to email or call each other after the meeting ends. It doesn’t keep Members from plotting their own new approaches to health care, or, for that matter, it doesn’t keep Members from plotting in secret to kill the health care bill.

What requirement could?

The only way I can think of to require that the real health care negotiations be public would be to put a ban on certain communications between Members of Congress. You could try to say, for example, that no Member of Congress can communicate with any other about health care, with the exception of a room wired for video. Then, if they wanted to negotiate, Members would have to do so in public. Somewhat similar provisions exist for the FCC, for example, as well as some other legislatures.

Would they be appropriate for Congress?

Any requirement that Members of Congress be forbidden to communicate with each other, under any circumstances, isn’t likely to get far.

Would the ban apply to staffers? Only to verbal communications, or to email and phone calls too?

How would constituents respond to seeing their Member’s speech being restricted?

Wouldn’t allowing speech restrictions on Members possibly empower the Majority party, and weaken the Minority, or at least alter power in an unpredictable, possibly harmful way? In other words, wouldn’t a requirement for public deliberations also apply to private conversations among Minority party Members?

What about the Speech or Debate Clause of the Constitution?

You can only require something to be public if it’s defined. Bills, laws, executive orders, financial disclosure, earmarks — part of making each of these things public has been to define them. Speech from Members of Congress is among the very hardest of things to define narrowly and well. Inhibiting Congress’s ability to act is dangerous, and inhibiting Congress’s ability to speak freely shouldn’t be undertaken lightly.

As long as: (1) each Chamber of Congress can set (and waive) its own Rules, and (2) as long as a bill becomes law if it’s passed identically in both Chambers, and (3) as long as political parties have a strong electoral interest in moving a legislative agenda, then we can expect legislative wrangling to continue behind closed doors, unless a Congressional speech restriction is enacted.

Calls for legislative transparency aren’t misplaced, and are certainly a rational response as we watch critical and enormous issues being reconciled away from the gaze of public accountability. We should also, however, have a realistic understanding of what it would take to force the real deal-making of Congress into the public eye.

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  • Thanks, John. I should have included in my original response that I was speaking of the possible, not the probable. There’s little chance of a president going to the wall like I described, certainly not against a Congress controlled by his own party.

    If Republicans were to take the House, we might see some strong demand from the White House for congressional transparency. The president could use it to beat up Republicans while following through on some of his transparency promises.

    That’s still quite speculative/unlikely because I don’t think voters are ready to let Repubs out of the woodshed, but it’s interesting to think about and it would be good to see.

    In the meantime, President Obama’s C-SPAN promise hangs out there – if it was imprudent to make, it’s a legitimate issue that he made transparency promises he was unprepared to carry out.

    To me, thinking about it that way is better than regarding imprudent campaign promises as excusable. That approach would encourage campaigners to sugar-coat, exaggerate, and prevaricate more than they already do.

    Thanks again, as always. This is interesting and fun to think about.

  • I was also just talking with Daniel Schuman about this, and realized that to some degree, this situation is due to the fact that Presidential campaigns are run more and more on legislative agendas.

  • Thanks Jim for your thoughts.

    You’re right that Obama’s campaign promises have fueled much of the current discussion about transparency for negotiations.

    I have a hard time imagining any President adding serious procedural requirements as a condition for not vetoing legislation, especially given how seriously Congress takes its own stature. (This is visible, for example, in the current discussion over the pocket veto — http://www.huffingtonpost.com/2010/01/13/house-to-rebuke-obama-on_n_421777.html ).

    I doubt any self-respecting Congress would accede to a Presidential demand for what the Constitution assigns to Congress — the responsibility to set their own rules.

  • Jake Brewer

    I’m with Noah in that I do think in the immediate future, the best place to focus transparency efforts is on the 72 hours before a bill is voted on.

    While consideration about how deliberations and debate can be brought more into the sunlight are especially important ones to think through, I think they may merit more debate themselves before implementing in the immediate term for the health care bill.

    What would be particularly bad – as John points out – are the unintended consequences that can happen with a law that has been fully considered.

    Very curious what others think.

  • I think you’re right that a statute or rule requiring negotiations in Congress to be transparent enough would be difficult to craft. Implementing it might require a ban on communications among members (including their agents), which runs up against constitutional problems. This is not because of the Speech or Debate Clause—it’s because you’d have to ban the First Amendment-protected petitioning by the private network of go-betweens that would develop in place of direct communication.

    But keep in mind that what got this issue on the table was a promise from a candidate running to lead a coequal branch of the government. President Obama could place any process conditions he wanted on his agreement to sign a bill. He could require televised negotiations and put the quality of them to a vote on Whitehouse.gov. He could require every member and senator to indicate his or her support or opposition to every provision of every bill, then veto any bill that had a provision with support of less than 50% of the membership of either house—a severe crimp on log-rolling, which is what drives much of the frustration with the current opaque processes. None of these requirements would run up against constitutional limitations.

    Because it was a promise, President Obama should push to have negotiations on C-SPAN. If the public doesn’t see “enough” of the “real” negotiating, he can act as our elected representative and send Congress back to the drawing board. The political consequences are his if he signs a bill that isn’t a product of the transparent process he promised.

    It’s his problem, not the transparency community’s. We should just favor transparency—all of it—and let the chips fall where they may.

  • Maurice Ross

    I believe strongly in open government. But members of Congress also have the right to negotiate with each other. I think too little respect is given to the rights of members of Congress to deliberate privately. Not every piece of legislation can be effectively passed in public. If the legislation proves unpopular, the answer is to throw the bums out. But legislators need the ability to negotiate privately if they are to be effective.

  • The most convincing part of this argument is that those that make our laws will never deprive themselves of the ability to negotiate ex parte:

    http://en.wikipedia.org/wiki/Ex_parte

    The one saving grace of our system is that while they can negotiate behind closed doors they can’t PASS LAWS behind closed doors.

    It’s at that juncture that we have to focus our efforts.